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Is Penal Code 422 PC Criminal Threats Always a Strike?


California Penal Code 422 PC defines the crime of “criminal threats” as unlawfully making threats to harm or kill someone when the threat places them in reasonable sustained fear for their safety, or members of their family.

It should be noted that the threat has to involve either a great bodily injury or death. PC 422 criminal threats charges are frequently directly related to domestic violence incidents.

Penal Code 422 PC defines the wobbler offense of criminal threats as:

  • “Any person who willfully makes threats to cause great bodily injury or death on another individual with the intent their statements were to be considered a threat under circumstances where the victim believed it could be carried out, and caused them sustained fear for their safety or their family.”

Importantly, however, there is no requirement that there was ever an actual intent to carry out the threat.

The threat could be made verbally or through any type of electronic communication, such as email or text messages.

Further, the threats have to place the alleged victim in reasonable fear that means they were fearful and even that the fear was sustained for some time.

In the state of California, criminal threats cases are serious business and could even expose a defendant to a “strike” under the three-strikes law and potentially resulting in a significant sentence in a state prison.

For more information, our Los Angeles criminal defense lawyers are reviewing the law in detail below.

What Must Be Proven to Get Convicted?

There are several certain factors a prosecutor has to be able to prove to convict a defendant of Penal Code 422 PC criminal threats.

Only certain elements of the crime can form the basis of a criminal threats prosecution under California law and they are listed under CALCRIM 1300:

  • defendant made willful threats to injure or kill somebody;
  • the threat was made verbally or through other type of communication;
  • the threat was meant to be considered a threat;
  • the threat was made under circumstances where the victim believed it could be carried out immediately;
  • the threat actually placed the victim in fear for their safety, or the safety of their immediate family.

It’s worth noting that the threat has to be communicated explicitly.What Must Be Proven to Get Convicted of Penal Code 422 PC Criminal Threats?

For instance, making gestures along with verbal threats such as “I’m going to kill you” is normally sufficient to support a charge of PC 422 criminal threats.

Further, in order to secure a conviction, the threat has to involve a great bodily injury or death. Any threat short of this requirement will not be sufficient to support a charge under this statute.

Finally, to convict someone, the threat in question has to place the victim in fear. This is the point where prosecutors can face a challenge in proving their criminal threats case as this is clearly subjective.

If it can’t be proven they were placed in actual fear, then the changes are not supported by sufficient evidence.

Additionally, even further, a PC 422 case requires that a victim was placed in sustained fear. There are situations where a victim who was threatened was placed in immediate reasonable fear, but that fear can fade quickly and not remain “sustained.”

One final note on factors that have to be proven to a criminal threats conviction – there is NO requirement that a defendant had any actual intent to carry out the threats.

What are the Related California Crimes?

There are several related statutes in California for Penal Code 422 criminal threats, including the following:

  • Penal Code 273.5 PC – corporal injury to a spouse,
  • Penal Code 243(e)(1) PC – domestic battery,
  • Penal Code 136.1 PC – dissuading a witness,
  • Penal Code 646.9 PC – stalking,
  • Penal Code 368 PC – elder abuse,
  • Penal Code 518 PC – extortion.
  • Penal Code 186.22 PC – criminal street gang enhancement.

What are the Penalties?

Penal Code 422 PC criminal threats is a “wobbler” that a prosecutor can file as a misdemeanor or felony crime. The consequences of a conviction will vary depending on different factors.

If convicted as a misdemeanor, a defendant is facing the following penalties:

  • up to one year in the county jail,
  • a fine up $1,000,
  • summary probation.

If convicted of a felony case of violating Section 422, a defendant is facing:

  • 16 months, two or three years in a California state prison,
  • a fine up $10,000,
  • formal probation.

If the defendant used a deadly weapon while committing the PC 422 offense, then an additional one year can be added to their sentence.

Does PC 422 Criminal Threats Fall Under California Three Strikes Law?

A common question from defendants is whether their Penal Code 422 violation falls under the big umbrella California’s three-strikes law.

Most readers are aware that the provisions of the three-strikes law can significantly increase prison sentences for second and subsequent convictions when a defendant already has a “strike” on their criminal record.

Put simply, any third-strike defendant could potentially be facing a life sentence in prison. A felony criminal threats conviction can qualify as a strike.

So, the short answer to this question is that it’s not always a strike. As noted above, PC 422 is a wobbler and can be filed as a misdemeanor or a felony.

If it’s filed as a misdemeanor, it’s never a strike. If on the other hand, it’s filed as a felony, then it is a strike and it will be on your record for the rest of your life, pursuant to the California three-strikes law.

How Can I Avoid a Strike?

Obviously, then next immediate step for dealing with a criminal threats cases is to:

  • figure out how you can avoid that strike, and
  • get a charge that’s either a misdemeanor, or
  • if you’re going to have to take some sort of a conviction, or
  • get a different charge that’s not a strike.

This is where having an experienced criminal defense attorney comes in.  I’ve been in the criminal defense field for almost three decades.  I’ve handled hundreds of Penal Code Section 422 criminal threat cases.

As time has gone on since the early 1990s when I started practicing criminal defense to today’s day, for whatever reason, the powers that be have decided that criminal threats is a very serious crime.

Manipulating the Criminal Justice System

Unfortunately, I’ve seen individuals manipulate the system and put people in a bad position as it relates to criminal threat charges.

What I mean by that is, they take an unfair advantage over them.  Let’s say a couple is going through a divorce.  All of a sudden, the significant other claims that the person threatened to kill them.

Now, they were able to freeze that person up and get them in a position where they’re being arrested and have to post a bail and are on the defensive.

They also take command of the family home because that person is going to get kicked out of the family home and they’ll usually be a restraining order and a criminal protective order and they put that person in a horrible position.

That’s just one example of them manipulating the system to work against a criminal defendant.

Best Defense Strategy for PC 422 Criminal Threats Cases

That’s why it’s so important to have an attorney by your side. Sometimes they’ve got the evidence and they can prove that you threatened another person, but:

  • maybe you really didn’t plan on carrying out the threat,
  • you’ve got no criminal record, and
  • you really don’t want that felony strike and potentially get some custody time, which is usual when it comes to criminal threat cases.

Another interesting thing that people don’t realize is, let’s say that way back in the day, you took a plea to a PC 422, a criminal threat, as a felony and then later on it was reduced down to a misdemeanor and you even got it expunged, where it was dismissed, that’s still a strike.

There’s case law on that. They use that case against you as a strike if you pick up any new felony that qualifies as a strike in the future.

The point is, Penal Code Section 422 is a very serious crime. They take it seriously in California, and particularly in Los Angeles.  So, what you want to do is get a game plan together before you even go to court.

I have people come in after they’ve been arrested.  Bring all of your paperwork.  We’ll sit down and you give me an idea of what happened, and we set up a plan.

We decide, here’s how we’re going to attack it. Either we’re going to attack it with a full investigation and go to trial, or we’re going to do something different.

Seeking a Reduced Misdemeanor Charge

Maybe they’ve got evidence that you did something wrong so, we’re going to try to get a different charge, for example, other than a Penal Code Section 422.Best Defense Strategy for PC 422 Criminal Threats Cases

One that we can reduce down to a misdemeanor, or even start off with a misdemeanor in the beginning. I can’t tell you right now what our strategy is because I haven’t met you yet.  I have to see:

  • what your criminal record looks like,
  • what evidence they have against you,
  • what they’re claiming that you did, and
  • I have to hear the details from you.

I need your side of the story as to what happened, and also a game plan between the two of us that makes sense for your particular circumstances.

So, if you’re charged with criminal threats and need the best, then you’ve come to the right place.  Pick up the phone.  Ask for a meeting with Ron Hedding.  I stand at the ready to help you.

Hedding law firm has two office locations in LA County, including 2049 Century Park E #2525 Los Angeles, CA 90067.

Call our office at for a free consultation at (213) 374-3952, or fill out our contact form.

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Ronald D. Hedding, ESQ.

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